Citation Nr: 0318646
Decision Date: 08/01/03 Archive Date: 08/13/03
DOCKET NO. 97-29 598A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Whether a timely appeal was filed with respect to the
question what evaluation is warranted for a hiatal hernia,
with gastroesophageal reflux disease, since May 1, 1995?
2. Whether a timely appeal was filed with respect to the
question what evaluation is warranted for a low back disorder
since May 1, 1995?
3. Whether a timely appeal was filed with respect to the
question what evaluation is warranted for hemorrhoids since
May 1, 1995?
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The veteran had active service from May 1961 to May 1964, and
from July 1964 to April 1995.
This case originally came before the Board of Veterans'
Appeals (Board) from an April 1996 determination entered by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Washington, DC. During the pendency of this appeal the
veteran moved and his file was transferred to the Roanoke,
Virginia RO.
In July 2002 correspondence the Board advised the veteran
that his substantive appeal with respect to the RO's action
in April 1996 appeared not to have been timely filed. In
response, the veteran requested a hearing, and, in September
2002, the Board remanded the appeal to the RO in order to
afford the veteran his requested hearing.
The veteran withdrew his request for a hearing in
correspondence received by the RO in December 2002. At that
time, the veteran also noted that he had recently been
granted the 10 percent rating he had sought for his service-
connected hemorrhoids and that such matter was no longer at
issue.
Despite the foregoing statement, the RO considered such
issue, while noting that a "complete grant" of benefit
sought on appeal had been made, in a supplemental statement
of the case in February 2003, and such matter was addressed
by the veteran's representative in subsequently compiled
written presentations. Notwithstanding the veteran's
apparent withdrawal of the issue presented as to rating to be
assigned for hemorrhoids, more recent actions by the
representative contradict the veteran's December 2002
statement and, as such, the Board herein addresses the
jurisdictional issue presented as to that matter, and the
others now on appeal.
Issues involving the veteran's entitlement to service
connection for hyperlipidemia and hypertension, as well as
claims for initial ratings for tinnitus, hearing loss,
osteoarthritis of multiple joints, and seasonal allergies
with hay fever, are addressed in the Remand portion of this
document, pursuant to the holding in Manlincon v. West, 12
Vet. App. 238 (1999).
Although the appeal of the April 1996 action is herein
dismissed in part, the veteran's submission of October 1997
is a claim increased evaluations for the disorders in
question. As such, this matter is referred to the RO for
appropriate consideration.
FINDINGS OF FACT
1. By its rating decision of April 1996, the RO, among other
actions, granted entitlement to service connection for a
herniated nucleus pulposus at L4-5 with degenerative joint
disease from L-1 to L-4, for a hiatal hernia with
gastroesophageal reflux disease, and for hemorrhoids. The RO
assigned ratings of 10 percent for the low back and hiatal
hernia disorders, and a noncompensable rating for
hemorrhoids.
2. Notice of the RO's actions in April 1996 was mailed to
the veteran on April 26, 1996.
3. On April 30, 1997, the veteran submitted a notice of
disagreement with the ratings assigned by the RO in April
1996 for his service-connected hemorrhoids, low back and
hiatal hernia disorders, following which a statement of the
case was mailed to the veteran on July 30, 1997.
4. A substantive appeal regarding the ratings assigned for
low back and hiatal hernia disorders and for hemorrhoids, was
not received by the RO prior to October 14, 1997, with there
being a presumption of a postmark date of October 7, 1997.
5. A timely substantive appeal was not received by the RO
regarding the April 1996 ratings assigned for the veteran's
low back, hiatal hernia, and hemorroidial disorders.
CONCLUSION OF LAW
As a timely substantive appeal to the April 1996 RO actions,
as to the ratings assigned for low back, hiatal hernia, and
hemorrhoidial disorders, was not filed. The Board is without
jurisdiction to review the merits of claims presented.
38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.101,
20.200, 20.202, 20.300, 20.302, 20.303, 20.305 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, it is noted that it is the Board's mandatory
obligation to ascertain in each and every case, and at any
juncture in its adjudication process, that it has
jurisdiction over the subject matter presented. See Barnett
v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (it is a well-
established judicial doctrine that any statutory tribunal
must ensure that it has jurisdiction over each case before
adjudicating the merits, that a potential jurisdictional
defect may be raised by the court or tribunal, sua sponte or
by any party, at any stage in the proceedings, and, once
apparent, must be adjudicated). The fact that the RO erred
in accepting the VA Form 9 of October 1997 as timely filed is
not dispositive of this matter as the United States Court of
Veterans Appeals (Court) held in Lozano v. Derwinski, 1 Vet.
App. 184, 185-86 (1991), relying upon OPM v. Richmond, 496
U.S. 414 (1990), held that an error could not be relied on to
estop VA from denying monetary benefits. In Richmond, the
Supreme Court held that the payment of government benefits
must be authorized by statute; therefore, erroneous advice
given by a government employee cannot be used to estop the
government from denying benefits. Richmond, 496 U.S. at 424;
see Schweiker v. Hansen, 450 U.S. 785, 788-90 (1981).
Notwithstanding the Board's obligation to assess its
jurisdiction, it must consider whether doing so in the first
instance is prejudicial to the veteran. Cf. Marsh v. West,
11 Vet. App. 468 (1998); see also Bernard v. Brown, 4 Vet.
App. 384 (1993). In this case, the RO addressed the issue of
the timeliness of filing of the substantive appeal, although
it later conceded timeliness and readdressed such question on
remand, following the Board's intervention. It is likewise
apparent that the Board through its July 2002 correspondence
properly advised the veteran, pursuant to 38 C.F.R.
§ 20.903(c), of its intent to address such question and
apprised him of the facts as they were then known and the
legal authority governing the disposition of the timeliness
issue.
The question herein presented, that of the timeliness of
filing of a substantive appeal, is by definition a legal one,
and one governed not by the facts presented but by the
controlling laws and regulations. See Sabonis v. Brown, 6
Vet. App. 426, 429-30 (1994). While the veteran argues that
he completed his substantive appeal on September 27, 1997,
and promptly mailed such document to the Washington RO, and
that the document was thereafter mishandled by either the
United States Postal Service or RO personnel, he stipulates
that he cannot offer proof that his substantive appeal was
mailed prior to the expiration of the 60-day period following
the issuance by the RO of a statement of the case. The
veteran, however, argues that his long service to his
country, that the RO's erroneous acceptance of his
substantive appeal, and the VA's expenditure of valuable
resources in developing his claims following the RO's
acceptance of his substantive appeal warrant an exception to
the rule of law. Notwithstanding the veteran's argument that
VA is estopped from denying the submission of a timely
substantive appeal, there is found to be no possibility of
prejudice to the veteran were the Board to proceed to address
the questions presented in an effort to ascertain whether the
Board has jurisdiction. See Bernard; VAOPGCPREC 16-92, 57
Fed. Reg. 49747 (1992). Also, because the governing legal
authority, and not the evidence, is dispositive of this
matter, the Veterans Claims Assistance Act of 2000 (VCAA),
Pub. L. No. 106-475, 114 Stat. 2096 (2000) and its
implementing regulations are not found to be applicable and
remand for their consideration by the RO is unnecessary. See
Mason v. Principi, 16 Vet. App. 129, 132 (2002).
Analysis
An appeal to the Board is initiated by filing a timely notice
of disagreement, and is perfected by filing a timely
substantive appeal. 38 C.F.R. § 20.200. A substantive
appeal consists of a properly completed VA Form 9, Appeal to
Board of Veterans' Appeals, or correspondence containing the
necessary information. 38 C.F.R. § 20.202.
To be considered timely, a substantive appeal must be filed
within 60 days from the date that the RO mails the statement
of the case to the appellant, within the remainder of the
one-year period from the date of mailing of the notification
of the determination being appealed, or within any extended
time limits prescribed pursuant to a timely-filed request for
extension of time. 38 U.S.C.A. § 7105(d); 38 C.F.R.
§§ 20.302(b), 20.303. The Court has held that, if the
claimant fails to file a substantive appeal in a timely
manner, "he is statutorily barred from appealing the RO
decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993).
The evidence of record shows that the RO in a rating decision
of April 16, 1996, in pertinent part, granted entitlement to
service connection for a herniated nucleus pulposus at L4-5,
with degenerative joint disease from L-1 to L-4, and assigned
a 10 percent schedular evaluation. Service connection was
also granted for a hiatal hernia with gastroesophageal
reflux, for which a 10 percent rating was assigned, and for
hemorrhoids which were evaluated as noncompensable. Notice
of this action was furnished to the veteran by the RO in its
letter, dated April 26, 1996.
A notice of disagreement as to the ratings assigned for the
veteran's low back, hiatal hernia and hemorrhoidial disorders
was not received by the RO until April 30, 1997, more than
one year following the date of mailing of notice of the April
1996 actions. However, because the postmark date on the
letter containing the notice of disagreement was not
available, the postmarked date was presumed by the RO,
pursuant to 38 C.F.R. § 20.305, to be five days prior to the
date of the RO's receipt of such correspondence, exclusive of
the intervening Saturday and Sunday, or April 24, 1996.
Hence, the RO correctly determined that the veteran's notice
of disagreement was timely submitted.
Following the completion of certain development actions by
the RO, a statement of the case was provided to the veteran
as an attachment to correspondence mailed to him on July 30,
1997. As a further attachment to the July 1997
correspondence, the RO included a VA Form 9, Appeal to the
Board of Veterans' Appeals, and the cover letter accompanying
the statement of the case requested that the veteran read the
instructions on the VA Form 9 in order to comply with the
time requirements for the submission of a substantive appeal.
The VA Form 9 was instructive of the fact that the veteran
had one year from the date the notice of decision had been
mailed or, 60 days from the date that the statement of the
case had been mailed, to file a timely substantive appeal.
He was also informed of the possibility of requesting and
receiving an extension as to the noted time limits, if
circumstances so warranted.
In this instance, however, a substantive appeal was not then
received by the RO until October 14, 1997, well beyond the
60-day period allotted from the time of issuance of the
statement of the case, and the one-year appeal period which
began on April 26, 1996. Moreover, no request for an
extension of time for the filing of the substantive appeal is
shown to have been made within the required time frame. See
38 C.F.R. § 20.303.
As was the case with the veteran's notice of disagreement,
the envelope containing the veteran's substantive appeal is
unavailable, but in this instance, the presumption that the
correspondence was mailed five days prior to the RO's receipt
does not render the document in question timely filed. With
the holiday occurring on Columbus Day, and being preceded by
Saturday and Sunday, October 11 and 12, 1997, respectively,
the presumed postmark date would revert to not earlier than
October 7, 1997. As the last date for timely filing was
September 29, 1997 (the 60-day period actually ended on
Sunday, September 28, 1997, with extension to Monday,
September 29, 1997, per 38 C.F.R. § 20.305), it is clear that
the veteran's substantive appeal was not timely filed.
As well, the record reflects that the provisions of 38 C.F.R.
§ 20.302(b) are not for application in this instance, as
there was no possibility of the receipt of additional
evidence by the RO, following the issuance of the statement
of the case in July 1997, within the time permitted to
perfect an appeal, as would have required the RO to prepare
and furnish a supplemental statement of the case and possibly
extend the period within which to timely file the substantive
appeal. See 38 C.F.R. § 20.302(b); VAOPGCPREC 9-97, 62 Fed.
Reg. 15567 (1997).
With regard to the veteran's argument that VA should accept
his word as a retired military officer that he mailed his
substantive appeal within the prescribed time limit, such an
argument is an equitable argument, not one based on the law.
While the Board is mindful that the veteran in this matter
has honestly and faithfully served his country for many
years, the dispositive legal authority provides no exception
to the limits established by the United States Congress for
the initiation and perfection of claims for VA compensation
benefits. As Justice Scalia has pointed out, the lack of
jurisdiction means "an inability to act, not merely in
unappealing cases, but in compelling cases as well."
National Black Media Coalition v. Federal Communications
Comm'n, 760 F.2d 1297, 1300 (D.C. Cir. 1985).
There, too, is no documentary evidence of any mishandling of
the veteran's substantive appeal by VA or non-VA personnel.
While it is unfortunate that the RO erred in finding that the
veteran's appeal had been timely perfected, the Board is not
bound by any such error or estopped from denying jurisdiction
where in fact no basis for the Board's jurisdiction exists.
In the absence of a timely appeal of the RO's April 1996
determination, as applicable to this matter, the Board lacks
jurisdiction to consider the merits of the underlying claims
and such claims must be dismissed. Roy.
ORDER
In the absence of a timely filed substantive appeal with
respect to the RO's April 1996 rating decision, appeals
pertaining to the ratings assigned for low back, hiatal
hernia, and hemorrhoidial disorders are dismissed.
REMAND
The April 1997 notice of disagreement is found by the
undersigned to encompass broadly all disorders for which
service connection was established in the April 16, 1996
rating decision. Notwithstanding subsequent action by VA as
to one or more of such matters, no statement of the case as
to matters adjudicated in the April 1996 action, including
those pertaining to claims for initial ratings in excess of
that assigned for tinnitus, hearing loss, seasonal allergies
with hay fever, and osteoarthritis of the knees, elbows,
wrists, and left foot, was ever provided to the veteran.
Pursuant to Manlincon, a remand is required for the issuance
of statement of the case as to the aforementioned issues.
Accordingly, such matters are REMANDED to the RO for the
following action:
The RO should furnish to the veteran and
his representative a statement of the
case regarding the veteran's notice of
disagreement pertaining to the ratings
assigned for tinnitus, hearing loss,
seasonal allergies with hay fever, and
osteoarthritis of the knees, elbows,
wrists, and left foot. Notice is hereby
afforded the veteran that he must submit
a timely substantive appeal within 60
days of the date of issuance of the
statement of the case in order to perfect
his right to appellate review of such
issues by the Board at a later time.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.